(New York) - Member states of the International Criminal Court (ICC) should use the upcoming review conference in Kampala, Uganda, to push forward justice for the worst international crimes, Human Rights Watch said in a report released today. Human Rights Watch called on member states to use preparations, conference discussions, and pledges of greater support for the ICC to increase the likelihood that the most serious perpetrators will be held to account.
The 102-page report, "Making Kampala Count: Advancing the Global Fight Against Impunity at the ICC Review Conference," assesses progress and recommends steps to strengthen international justice. The report addresses the four themes identified as part of the conference's "stock-taking exercise": peace and justice, strengthening national courts, the ICC's impact on affected communities, and state cooperation.
"This is a moment for ICC members meeting in Kampala to send a message to perpetrators and would-be perpetrators that they will face justice," said Richard Dicker, International Justice director at Human Rights Watch. "Serious debate at the conference can make real progress for the victims of mass slaughter and the use of rape as a weapon of war."
At the conference, from May 31 to June 11, 2010, representatives of the court's 111 member states, non-member states, the United Nations, and civil society groups will reaffirm the importance of bringing to justice those accused of genocide, war crimes, and crimes against humanity, the crimes covered by the ICC. The court's treaty was adopted in Rome in 1998.
While the ICC has made important progress since it became operational in 2003 - opening five investigations and starting two trials in The Hague - more steps are needed to extend and strengthen an emerging system of international justice, Human Rights Watch said. The two-week conference will address how to position the ICC and national courts better to hold perpetrators to account in fair trials, and will review proposals to amend the ICC's treaty, including exercising authority over a newly defined crime of aggression, that is, using force that is manifestly contrary to the UN Charter.
Human Rights Watch urged the governments at the Kampala conference to promote joint efforts to improve national-level trials of ICC crimes. Because the ICC only acts where national courts are unable or unwilling to hold credible trials at home, and its reach is limited to a handful of cases, national courts are essential for holding all perpetrators of the worst international crimes to account.
"The ICC is meant to be a court of last resort," Dicker said. "Advancing the fight against impunity means not only strengthening the ICC, but also bringing justice to the national level according to internationally agreed standards."
Using the conference to improve state cooperation with the ICC is essential to its success, Human Rights Watch said. The court relies on governments to enforce its decisions and assist its investigations and prosecutions. The recent backlash over the court's arrest warrant for President Omar al-Bashir of Sudan has underscored the importance of strong public backing for the court's mandate. States are expected to pledge at the conference to take specific steps at the national level to bolster cooperation.
"States should come to Kampala with specific pledges to increase their practical and political support for the ICC," Dicker said. "These pledges are crucial for demonstrating commitment to the court."
The conference's location in Kampala also offers a unique opportunity to forge stronger links between the ICC and those affected by egregious crimes in Africa, Human Rights Watch said. States should consider how the court's outreach and field presence can better bridge the gap between proceedings in The Hague and affected communities in eastern Congo, northern Uganda, the Central African Republic, Darfur in Sudan, and Kenya.
States will also negotiate the definition of the crime of aggression and its implementation by the court. While taking no position on the definition, Human Rights Watch is concerned about proposals to allow the UN Security Council to decide whether the ICC prosecutor can investigate alleged crimes of aggression. Human Rights Watch has opposed Security Council control of any crime within the jurisdiction of the court because control by a political body would undermine the ICC's judicial independence.
Human Rights Watch also expressed concern that the crime of aggression could link the ICC to highly politicized disputes between states that could diminish the court's role - and the perceptions of that role - as an impartial judicial arbiter of international criminal law.
Civil society organizations and activists from around the world will be in Kampala to raise their concerns. The conference's formal agenda will be complemented by a number of side meetings, including in a "People's Space" hosted by Ugandan civil society.
The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so. The ICC treaty, known as the Rome Statute, entered into force in 2002, just four years after 120 states adopted the treaty during the Rome Conference.
An Assembly of States Parties was created by the Rome Statute to provide management oversight of the administration of the court. It consists of representatives of each state member and is required to meet at least once a year but can meet more often as required.
The Rome Statute mandates that seven years after the treaty enters into force, the UN secretary-general is to convene a review conference to consider any amendments to the treaty. At its seventh Assembly of States Parties, in 2008, ICC members agreed to hold this conference in Kampala.
In addition to considering proposed amendments such as on the crime of aggression, the agenda of the review conference includes a general debate in which high-level representatives of ICC member states are expected to participate and two days of debate and discussion as part of a "stocktaking exercise." At their eighth Assembly of States Parties, ICC members decided on four topics for stocktaking: cooperation; complementarity; the impact of the Rome Statute system on victims and affected communities; and peace and justice.
The court's jurisdiction may be triggered in one of three ways. States parties or the UN Security Council can refer a situation (meaning a specific set of events) to the ICC prosecutor, or the ICC prosecutor can seek on his own motion authorization by a pre-trial chamber of ICC judges to open an investigation.
The ICC prosecutor has opened investigations in the Democratic Republic of Congo, northern Uganda, the Darfur region of Sudan, the Central African Republic, and Kenya. Based on those investigations, 13 arrest warrants and one summons to appear have been issued. The prosecutor is also looking at a number of other situations in countries around the world. These include Colombia, Georgia, Cote d'Ivoire, Afghanistan, and Guinea. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over crimes committed in Gaza.
Four individuals are in ICC custody in The Hague. A fifth, Bahr Idriss Abu Garda - who was charged with war crimes in connection with an attack on African Union peacekeepers in Darfur - appeared voluntarily during pre-trial proceedings. The ICC's pre-trial chamber subsequently declined to confirm charges brought against Abu Garda.
The court began its first trial, of the Congolese rebel leader Thomas Lubanga Dyilo, on January 26, 2009. Its second trial, against the Congolese rebel leaders Germain Katanga and Mathieu Ngudjolo Chui, began on November 24, 2009.
In addition to al-Bashir and two other individuals sought in relation to the Darfur situation, arrest warrants remain outstanding for leaders of the Lord's Resistance Army in northern Uganda and for Bosco Ntaganda, a former rebel commander now integrated into the Congolese national army.